|Notre Dame’s Gerard Bradley on Catholic-HHS Contraception Lawsuit|
By Ashton Ellis
Thursday, May 31 2012
Monday, May 21, 2012, signaled a new round in the fight between Catholic institutions and the federal Department of Health and Human Services over HHS’s controversial contraception mandate.
In a coordinated effort, 43 separate Catholic entities – churches, hospitals, schools and other charities – filed lawsuits in every relevant federal circuit.
While most of the media attention focused on the clear and powerful arguments the lawsuits make in defense of religious liberty and freedom of conscience, almost none stepped back to consider the merits of pursuing a national litigation strategy.
To shed light on the logic behind the litigation, CFIF corresponded via email with Professor Gerard V. Bradley, Professor of Law at the University of Notre Dame. Bradley, an expert on constitutional law and author of the newly published book Challenges to Religious Liberty in the Twenty-First Century, highlighted several possible benefits for filing multiple lawsuits.
One advantage is that it gives trial judges “the opportunity to develop somewhat different records on behalf of the various plaintiffs, with a view to securing favorable rulings in one if not perhaps… another [jurisdiction].” For example, two suits were filed in the Northern District of Indiana; one on behalf of Notre Dame, the other for the Diocese of Fort Wayne.
Though similar in their arguments, the complaints filed by the university and the diocese offer trial judges different perspectives of how the HHS mandate violates the free exercise rights of religious employers by requiring them to provide employees access to abortion-inducing drugs, sterilization and contraception.
Another benefit of filing lawsuits nationwide is the ability to package disagreements by various judges into an appeal to the Supreme Court. Because of the diversity of Catholic groups suing to stop the HHS mandate, some courts are very likely to rule against one or more of the lawsuits, while other courts rule in favor.
Hypothetically, an Indiana federal judge might rule against Notre Dame, while his counterpart in Ohio rules in favor of Franciscan University of Steubenville. If those results remain unchanged after being appealed to the 7th and 6th federal appellate circuits, respectively, then, according to Bradley, “the Supreme Court is practically certain to take the case.”
But don’t expect any of these cases to be fast-tracked, Bradley warns. Until the Supreme Court publicizes its ruling this summer on the other health care mandate – the requirement that each U.S. citizen purchase health insurance or pay a fine – lower courts will move slowly.
If the Justices find the individual mandate unconstitutional and non-severable from the rest of the Patient Protection and Affordable Care Act (i.e. ObamaCare), then the entire law will fall.
That would include the contraception mandate, since HHS’s sole authority for issuing it rests on ObamaCare being in effect.
That’s the easy case.
The more difficult scenarios arise if the Supreme Court strikes down the individual mandate but leaves the rest of ObamaCare in place, or if it upholds the individual mandate. In either case, it is likely that lower courts would not get clear guidelines on how to judge whether the contraception mandate is unconstitutional. If that happens, Bradley anticipates even more foot-dragging until after the presidential election.
Courts would prefer the political branches to decide controversial issues. If Mitt Romney wins, then the contraception mandate can be easily rescinded. But if Barack Obama gets another term, expect to see the first judicial rulings in late 2013.
Ideally, Catholic institutions would like Obama’s HHS to rescind the contraception mandate immediately. The next best action would be to use the nationwide litigation as an excuse to negotiate a rule that exempts all religious employers by defining them in the broadest sense possible.
But since that seems unlikely in an election year where President Obama is using the lawsuits to raise money and solidify his base, it’s up to a group of disparate Catholic entities to fight for their rights, one courtroom at a time.
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